[Cites 7, Cited by 0]
Gujarat High Court
Karsanbhai Limbabhai Roriya vs State Of Gujarat on 5 December, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1000 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
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KARSANBHAI LIMBABHAI RORIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ANAND B GOGIA(5849) for the Petitioner(s) No. 1
MR BB GOGIA(5851) for the Petitioner(s) No. 1
MR RB GOGIA(5850) for the Petitioner(s) No. 1
MS FORUM SUKHADWALA, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/12/2025
ORAL JUDGMENT
1. Heard Mr. Gaurav A. Gogia, learned counsel appearing
on behalf of Ms. Anand B. Gogia, learned counsel with Mr.
R.B. Gogia, learned counsel for the petitioner, and Ms. Forum
Sukhadwala, learned AGP appearing on behalf of the
respondents.
2. The present writ petition is filed by the present
petitioner under Article 226 of the Constitution of India, inter
alia, seeking the following reliefs:
"A. YOUR LORDSHIPS may be pleased to admit and allow this
petition.
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B. YOUR LORDSHIPS may be pleased to quash and set aside the
impugned Order(s) dated (29.05.2013) (19.09.2013)
(24.10.2013) (at ANNEXURE - 'A') by issuing the writ of
mandamus or by any other writ, order, direction(s) and the
Respondent(s) be restrained permanently from effecting the
recovery of alleged excess amount as mentioned in the Order(s)
at ANNEXURE - 'A' to the petition.
C. Pending admission to the final disposal of this petition, the
Respondent(s) be restrained from effecting recovery amount as
stated in Order(s) annexed at ANNEXURE - 'A' to the petition
from his salary or from any other dues payable to the
Petitioner(s) during service or from his retirement dues after
retirement.
D. To pass any other relief or relief(s) which may be deemed to
fit for the interest of the injustice."
SUBMISSIONS ON BEHALF OF PETITIONER:
3. At the outset, learned counsel Mr. Gaurav A. Gogia
would submit that undisputedly, petitioner was not afforded
any opportunity of hearing when the impugned orders /
communications dated 29.05.2013; 19.09.2013 & 24.10.2013
was served upon him by the respondent, whereby recovery of
Rs. 41,529/- has been sought from him. So, decision of
respondent authority would suffer from violation of principles
of natural justice then, requires to be quashed and set aside.
3.1 Learned counsel Mr. Gogia would submit that petitioner
was working as a Daily Wager, i.e., a class IV employee with
the respondent department.
3.2 Learned counsel Mr. Gogia would submit that petitioner
was appointed as a Daily Wager, i.e., a class IV employee in
the respondent department on 20.05.1984 or so. The service
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of the petitioner came to be terminated on 31.10.1985 in an
illegal manner. The said action of the respondent department
was challenged by the petitioner by way of filing Reference
before the Learned Labour Court, Jamnagar vide REF LCJ No.
6 of 1991. After hearing the parties Learned Labour Court,
Jamnagar was pleased to allow the said reference by granting
reinstatement on the Original post without back wages. That,
in pursuance of the said Award, the petitioner was allowed to
join the services on his Original Post vide his Resumption
report dated 01.04.1998.
3.3 Learned counsel Mr. Gogia would submit that, Petitioner
was working as Daily Wager, i.e., a class IV employee with the
respondent department and was to retire in the month of
June, 2014 as per the communication / order dated
24.10.2013 at Page 27 on attaining the age of superannuation
and the recovery was sought vide impugned orders /
communications dated 29.05.2013; 19.09.2013 & 24.10.2013,
which is nothing but unauthorized and illegal action on the
part of the respondent(s). Learned counsel Mr. Gogia would
further submit that in pursuance to the above impugned
orders / communications a sum of about Rs. 21,394/- is
already recovered from the petitioners till his retirement.
3.4 Learned counsel Mr. Gogia would respectfully submit
that as per Rule 28-A of the Gujarat Civil Services (Pay) Rules,
2002, the respondent department was not authorized to
recover any amount from petitioner.
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3.5 Learned counsel Mr. Gogia would respectfully submit
that as per the recent decision of the Hon'ble Apex Court in
the case of Jogeswar Sahoo and Others versus District
Judge, Cuttack and Others reported in AIR 2025 SC 2291,
more particularly, paragraphs 8 to 10 thereof, when principles
of natural justice have been violated by the respondent
department., the impugned orders / communications dated
29.05.2013; 19.09.2013 & 24.10.2013 are required to be
quashed and set aside. It is respectfully submitted that when
there is no mala fide/fraud, and/or any misrepresentation by
petitioner in getting the benefit from service, the respondent
employer has no right to recover the amount, may be paid on
a mistaken decision, i.e., wrong fixation of the pay scale of
petitioner.
3.6 Making the above submissions, learned advocate Mr.
Gogia would request this Court to allow the present writ
petition.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:-
4. Learned AGP Ms. Sukhadwala has referred and relied
upon para - 4 to 6 of the Affidavit-in-Reply dated 24.04.2014
filed by one Shri M.K. Chaudhary, The Executive Engineer,
Irrigation Department, Jamnagar. The relevant Paras are
reproduced hereunder:-
4.1 Learned AGP Ms. Sukhadwala would submit that there is
no ill-intention on the part of the respondent department
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seeking recovery from the petitioner. It is submitted that the
Order of recovery was passed only for the reason that, the
petitioner is not entitle for the benefit of pay-scale and
increment for the period from 01.01.2006 to 01.04.2008,
which should not be disturbed by this Court while exercising
its discretionary power.
4.2 Making the above submissions, learned AGP
Ms.Sukhadwala would request this Court to dismiss the
present writ petition.
4.3 No other and further submissions are made.
ANALYSIS:-
5. Heard learned counsels for the respective parties at
length. The facts which emerge from the record and the
submissions of the respective learned counsels as follow :
5.1 The Petitioner was a daily wager - Class IV employee
and at the very fag end of the service career of the Petitioner,
the Respondent department issued the Order(s) /
Communication(s) dated 29.05.2013; 19.09.2013 &
24.10.2013 whereby recovery of Rs. 41,529/- has been sought
from him.
5.2 Nonetheless, before affecting such recovery,
undisputedly, no opportunity of hearing has been afforded to
the petitioner. Likewise, it is not even remotely the case of the
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respondent department that while pay was fixed by the
respondent department based on any fraud or
misrepresentation was made by the petitioner to get undue
benefit from the respondent department.
6. So, keeping the aforesaid facts and circumstances in
mind, it would be apt to refer to the recent decision of the
Hon'ble Apex Court in the case of Jogeswar Sahoo (supra),
wherein after referring its previous decisions, it held thus;
"8. The law in this regard has been settled by this Court in catena
of judgments rendered time and again; Sahib Ram vs. State of
Haryana, 1995 Supp1 SCC 18 Shyam Babu Verma vs. Union of India,
1994 2 SCC 521 Union of India vs. M. Bhaskar, 1996 4 SCC 416 and
V. Gangaram vs. Regional Jt. Director, 1997 6 SCC 139 and in a
recent decision in the matter of Thomas Daniel vs. State of Kerala &
Ors.,2022 SCCOnlineSC 536.
9. This Court has consistently taken the view that if the excess
amount was not paid on account of any misrepresentation or fraud
on the part of the employee or if such excess payment was made
by the employer by applying a wrong principle for calculating the
pay/allowance or on the basis of a particular interpretation of
rule/order, which is subsequently found to be erroneous, such
excess payments of emoluments or allowances are not recoverable.
It is held that such relief against the recovery is not because of any
right of the employee but in equity, exercising judicial discretion to
provide relief to the employee from the hardship that will be caused
if the recovery is ordered.
10. In Thomas Daniel (supra), this Court has held thus in paras 10,
11, 12 and 13:
"10. In Sahib Ram v. State of Haryana1 this Court restrained
recovery of payment which was given under the upgraded pay
scale on account of wrong construction of relevant order by the
authority concerned, without any misrepresentation on part of
the employees. It was held thus:
"5. Admittedly the appellant does not possess the required
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educational qualifications. Under the circumstances the
appellant would not be entitled to the relaxation. The
Principal erred in granting him the relaxation. Since the date
of relaxation, the appellant had been paid his salary on the
revised scale. However, it is not on account of any
misrepresentation made by the appellant that the benefit of
the higher pay scale was given to him but by wrong
construction made by the Principal for which the appellant
cannot be held to be at fault. Under the circumstances the
amount paid till date may not be recovered from the
appellant. The principle of equal pay for equal work would
not apply to the scales prescribed by the University Grants
Commission. The appeal is allowed partly without any order
as to costs."
11. In Col. B.J. Akkara (Retd.) v. Government of India reported in
(2006) 11 SCC 709 this Court considered an identical question as
under:
"27. The last question to e considered is whether relief should
be granted against the recovery of the excess payments made
on account of the wrong interpretation/understanding of the
circular dated 7-6-1999. This Court has consistently granted
relief against recovery of excess wrong payment of
emoluments/allowances from an employee, if the following
conditions are fulfilled (vide Sahib Ram v. State of Haryana
[1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu
Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S)
683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996)
4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional
Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]):
(a) The excess payment was not made on account of any
misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by
applying a wrong principle for calculating the
pay/allowance or on the basis of a particular
interpretation of rule/order, which is subsequently found
to be erroneous.
28. Such relief, restraining back recovery of excess payment, is
granted by courts not because of any right in the employees,
but in equity, in exercise of judicial discretion to relieve the
employees from the hardship that will be caused if recovery is
implemented. A government servant, particularly one in the
lower rungs of service would spend whatever emoluments he
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receives for the upkeep of his family. If he receives an excess
payment for a long period, he would spend it, genuinely
believing that he is entitled to it. As any subsequent action to
recover the excess payment will cause undue hardship to him,
relief is granted in that behalf. But where the employee had
knowledge that the payment received was in excess of what
was due or wrongly paid, or where the error is detected or
corrected within a short time of wrong payment, courts will not
grant relief against recovery. The matter being in the realm of
judicial discretion, courts may on the facts and circumstances
of any particular case refuse to grant such relief against
recovery.
29. On the same principle, pensioners can also seek a direction
that wrong payments should not be recovered, as pensioners
are in a more disadvantageous position when compared to in-
service employees. Any attempt to recover excess wrong
payment would cause undue hardship to them. The petitioners
are not guilty of any misrepresentation or fraud in regard to
the excess payment. NPA was added to minimum pay, for
purposes of stepping up, due to a wrong understanding by the
implementing departments. We are therefore of the view that
the respondents shall not recover any excess payments made
towards pension in pursuance of the circular dated 7-6-1999 till
the issue of the clarificatory circular dated 11-9-2001. Insofar
as any excess payment made after the circular dated 11-9-
2001, obviously the Union of India will be entitled to recover
the excess as the validity of the said circular has been upheld
and as pensioners have been put on notice in regard to the
wrong calculations earlier made."
12. In Syed Abdul Qadir v. State of Bihar excess payment was
sought to be recovered which was made to the appellants-
teachers on account of mistake and wrong interpretation of
prevailing Bihar Nationalised Secondary School (Service
Conditions) Rules, 1983. The appellants therein contended
that even if it were to be held that the appellants were not
entitled to the benefit of additional increment on promotion,
the excess amount should not be recovered from them, it
having been paid without any misrepresentation or fraud on
their part. The Court held that the appellants cannot be held
responsible in such a situation and recovery of the excess
payment should not be ordered, especially when the employee
has subsequently retired. The court observed that in general
parlance, recovery is prohibited by courts where there exists
no misrepresentation or fraud on the part of the employee and
when the excess payment has been made by applying a wrong
interpretation/understanding of a Rule or Order. It was held
thus:
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"59. Undoubtedly, the excess amount that has been paid
to the appellant teachers was not because of any
misrepresentation or fraud on their part and the
appellants also had no knowledge that the amount that
was being paid to them was more than what they were
entitled to. It would not be out of place to mention here
that the Finance Department had, in its counter- affidavit,
admitted that it was a bona fide mistake on their part. The
excess payment made was the result of wrong
interpretation of the Rule that was applicable to them, for
which the appellants cannot be held responsible. Rather,
the whole confusion was because of inaction, negligence
and carelessness of the officials concerned of the
Government of Bihar. Learned counsel appearing on
behalf of the appellant teachers submitted that majority
of the beneficiaries have either retired or are on the verge
of it. Keeping in view the peculiar facts and circumstances
of the case at hand and to avoid any hardship to the
appellant teachers, we are of the view that no recovery of
the amount that has been paid in excess to the appellant
teachers should be made."
13. In State of Punjab v. Rafiq Masih (White Washer) wherein
this court examined the validity of an order passed by the
State to recover the monetary gains wrongly extended to the
beneficiary employees in excess of their entitlements without
any fault or misrepresentation at the behest of the recipient.
This Court considered situations of hardship caused to an
employee, if recovery is directed to reimburse the employer
and disallowed the same, exempting the beneficiary
employees from such recovery. It was held thus:
8. As between two parties, if a determination is rendered
in favour of the party, which is the weaker of the two,
without any serious detriment to the other (which is truly
a welfare State), the issue resolved would be in
consonance with the concept of justice, which is assured
to the citizens of India, even in the Preamble of the
Constitution of India. The right to recover being pursued
by the employer, will have to be compared, with the effect
of the recovery on the employee concerned. If the effect
of the recovery from the employee concerned would be,
more unfair, more wrongful, more improper, and more
unwarranted, than the corresponding right of the
employer to recover the amount, then it would be
iniquitous and arbitrary, to effect the recovery. In such a
situation, the employee's right would outbalance, and
therefore eclipse, the right of the employer to recover.
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18. It is not possible to postulate all situations of hardship which
would govern employees on the issue of recovery, where
payments have mistakenly been made by the employer, in
excess of their entitlement. Be that as it may, based on the
decisions referred to hereinabove, we may, as a ready
reference, summarise the following few situations, wherein
recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and
Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees
who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment
has been made for a period in excess of five years, before the
order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been
required to discharge duties of a higher post, and has been
paid accordingly, even though he should have rightfully been
required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion,
that recovery if made from the employee, would be iniquitous
or harsh or arbitrary to such an extent, as would far outweigh
the equitable balance of the employer's right to recover.
(emphasis supplied)"
7. Thus, considering the dictum of the aforesaid decision,
having apply to the case on hand, it would be clear that the
respondent department could not have affected recovery of
any excess amount inadvertently paid to the petitioner, that
too without affording any opportunity of hearing, as the case
may be, especially when it is not proved on record that there
is any fraud or misrepresentation by petitioner in getting any
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undue advantage from the respondent department.
CONCLUSION:-
8. So, in view of foregoing reasons, the recovery sought for
by way of the impugned orders / communications dated
29.05.2013; 19.09.2013 & 24.10.2013 is considered to be an
illegal one and hence, it requires to be quashed and set aside
by this Court which I do so.
9. Consequently, the impugned orders / communications
dated 29.05.2013; 19.09.2013 & 24.10.2013 [Annexure-A
Colly.] passed by the respondent department seeking recovery
of Rs. 41,529/- is hereby quashed and set aside.
10. Nonetheless, it is hereby observed and clarified that the
amount of recovery which is actually effected by the
respondent department from the petitioner in pursuance to
the aforesaid impugned orders / communications 29.05.2013;
19.09.2013 & 24.10.2013, the same shall be re-paid /
refunded to petitioner within a period of 30 days from the
date of receipt of copy of this order.
11. In view of the foregoing conclusion, the present writ
petition deserves to be allowed, which is hereby allowed. Rule
is made absolute to the aforesaid extent. No orders as to
costs.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
